1. This statement follows the one issued by the Public Relations Officer of the Botswana Police, Mr Christopher Mbulawa, in relation to the arrest and continued detention of journalist Mr Daniel Kenosi.
2. Mr Mbulawa has confirmed that Mr Kenosi has been arrested in relation to contravention of section 16 of the Cybercrime and Computer Related Crimes Act in that he is suspected to have unlawfully distributed pornographic or obscene material. He was also detained in respect of an allegation of criminal defamation contrary to section 192 of the Penal Code.
3. MISA Botswana assumes that Mr Mbulawa was referring, in particular, to section 16 (2) of the Cybercrime and Computer Related Crimes Act. In our view, the provisions of section 16 (2) of the said Act may not pass constitutional muster because they are too wide and, therefore, are an unreasonable infringement of section 12 (1) of the Constitution which provides for freedom of expression, which includes freedom by the media to communicate information without hindrance. The same goes for the archaic section 192 of the Penal Code on criminal defamation. In our view, all these blanket provisions ought to be challenged in court for breaching freedom of expression.
4. Whilst we respect the fact that the case against Mr Daniel Kenosi is before the court, we call upon the Director of Public Prosecutions (“the DPP”) to withdraw the charges against Mr Kenosi on the reasons stated above. Should he nonetheless proceed with the charges based on these seemingly unconstitutional provisions, MISA Botswana shall seriously consider applying to join either as a party to the proceedings or as a friend of the court with a view to assisting the High Court, should the matter reach that level, on the constitutionality of the provisions being used against Mr Kenosi.